By Paul Minderhoud
Thousands of irregular migrants reside in the Netherlands. This number includes migrants who have exhausted all legal remedies and whose claim to stay is rejected and therefore must leave the Netherlands on their own initiative. Since 2019, those who do not immediately do so can – for a certain period – be accommodated in one of the five recently established National Aliens Facility locations (Landelijke Vreemdelingenvoorzieningen, LVV) in Amsterdam, Rotterdam, Utrecht, Eindhoven and Groningen, supervised by the Repatriation & Departure Service of the Ministry of Justice and Security in cooperation with municipalities. These LVVs are an addition to the so-called central freedom-limiting location (Vrijheidsbeperkende Locatie, VBL), based in Ter Apel and are currently still in a pilot stage. It is the intention to extend the number of LVVs to eight locations. Migrants who are accommodated in these LVVs will have to cooperate in finding a lasting solution to their situation, which in most cases means they have to return. The existing local bed-bath-bread facilities in these municipalities and, in time, in all municipalities, must be closed. But is this closure possible in light of international obligations? Do the plans really result in ending this form of municipal facilities?
2. The emergence of the bed-bath-bread facilities
In 2014 the European Committee of Social Rights (ECSR), which supervises compliance with the European Social Charter (ESC), ruled that the Netherlands was acting in violation of this ESC by not providing any shelter to people unlawfully residing in the country.
Despite the fact that the ECSR decision is not binding, the Dutch judiciary thought otherwise and in December 2014 the Central Appeals Tribunal (CRvB) instructed the municipality of Amsterdam to provide night shelter with a shower, meal and bed (the so-called bed-bath-and-bread shelter). Several municipalities subsequently created such bed-bath-bread shelters, which were financed by the State. In April 2015 a resolution of the Committee of Ministers of the Council of Europe, which always follows upon a ECSR decision, did not give any definite answer to the obligation to provide shelter.
On 26 November 2015, both the CRvB and the Administrative Law Division of the Council of State (the highest Dutch administrative courts) judged in a carefully orchestrated collaboration that the accommodation of rejected migrants in this VBL, for which a condition of cooperating with their expulsion is compulsory, is an adequate form of shelter. Municipalities were therefore no longer obliged to provide shelter facilities of their own.
The Council of State held the opinion that the State Secretary may require rejected migrants to cooperate in their departure from the Netherlands when offering accommodation in the VBL except for special circumstances. According tohe Council of State, migrants cannot appeal directly to provisions of the ESC and the ECSR’s decisions on the interpretation of the ESC are not legally binding. However, these decisions are authoritative and can play a role in the interpretation of articles that the court can apply directly, such as the human rights provisions from the ECHR. But the ECHR does not oblige the State Secretary to offer unconditional shelter to rejected migrants. The State Secretary may refuse a non cooperative migrant accommodation, barring special circumstances. Such special circumstances only occur if the migrant, because of his mental health cannot oversee that if he does not cooperate, he will not be accommodated by the State Secretary.
On the same day, the CRvB decided that the municipality of Amsterdam may refuse to accommodate rejected migrants and may refer them to the VBL in Ter Apel for shelter. The municipality may assume that a rejected migrant can make use of this VBL facility. There is no need to provide accommodation by the municipality.
Contrary to the ECSR, the highest Dutch administrative courts ruled that the condition to cooperate in their expulsion may be set and that the accommodation in a VBL is an adequate form of shelter in that context. This is not in line with paragraph 117 of the judgment of the ECSR, which explicitly stated: ‘(…) The Committee equally considers that the provisions of emergency assistance cannot be made conditional upon the willingness of the persons concerned to cooperate in the organisation of their own expulsion.’
3. Are there additional international obligations?
In the discussion regarding the ECSR ruling hardly any attention has been paid to the position of these rejected migrants under EU law. As long as they have not been expelled, they fall within the scope of the Return Directive and therefore also of the EU Charter of Fundamental Rights. This Return Directive lays down minimum standards and procedures with respect to the return of third-country nationals (i.e. nationals from outside the EU) as long as they are staying irregularly on the territory of a Member State.
In addition, the Return Directive also provides a definition of ‘vulnerable migrants’ which is considerably more extensive than the ‘special circumstances’ criterion used by the State Secretary and the judiciary, which only applies if the migrant, on account of his mental health cannot be considered capable of overseeing the consequences of his actions. Incidentally, this appears to be a classic catch-22; it is up to the migrant to invoke these special circumstances, but if he is able to do so, does it not appear that he is capable of overseeing the consequences of his actions?
The treatment of rejected migrants must comply with the minimum conditions of Union law laid down in the Charter of Fundamental Rights and thus also with Article 1 of that Charter, which reads: “Human dignity is inviolable. It must be respected and protected.” In the Netherlands, so far little attention has been paid to this fundamental provision, but in my opinion, this provision can play a more important role for the treatment (including shelter) of rejected migrants in the Netherlands.
Similarly relevant in this context is Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its obligation to provide necessary shelter to people who are unable to provide it themselves. This Covenant also covers persons without a residence status. Three UN Special Rapporteurs (on extreme poverty and human rights, on adequate housing, standard of living and non-discrimination, and on the human rights of migrants) explicitly reminded the Dutch government of this obligation to provide shelter in December 2014 and again in 2016. The Netherlands Institute for Human Rights reiterated this obligation in 2016. Although the Netherlands did sign this ICESCR, it regards the provisions in question as generally formulated objectives, and not as legally binding provisions as referred to in the Dutch Constitution.
Finally, the European Convention on Human Rights (ECHR) is also important in this context. The ECHR does not result in a general obligation to provide accommodation to migrants residing unlawfully, but this obligation can exist under certain circumstances. In a 2016 decision in Hunde v. Netherlands, the ECtHR was given the opportunity to clarify the Dutch situation in the light of Article 3 ECHR, which prohibits inhuman and degrading treatment. The complainant in this case was an Ethiopian rejected migrant who stayed unlawfully in the “Vluchtgarage” in Amsterdam submitted a new application for asylum and received an asylum permit in the end. He claimed the conditions in the garage were in violation of Article 3 ECHR. He had been offered shelter in the VBL during that period, provided that he would cooperate with his expulsion, which he had refused. According to the ECtHR: ‘Article 3 requires states to take action in situations of the most extreme poverty also when it concerns irregular migrants’. While in the end the complaint was declared unfounded the Court – albeit not clearly expressed – recognised a role for bed-bath-bread facilities to prevent ‘extreme poverty’.
4. Is there still room for municipal shelter facilities?
Do municipalities still have an own responsibility for offering bed-bath-bread regulation? Formally, it is only the State Secretary of (now) Justice and Security who offers shelter. According to the Council of State, the municipal authorities have no specific authority to offer reception to rejected migrants, but the municipalities are – in short – autonomous in this context as long as the central government allows it. At the moment no regulation makes the accommodation of rejected migrants an exclusive responsibility of the State. The use by municipalities of the authority they have by virtue of Article 172 of the Municipalities Act may therefore offer solace. This Article concerns the maintaining of public peace and order (and preventing people from being put out on the street) in combination with the general duty of municipalities to provide care to everyone within the boundaries of the municipality. Municipalities invoke in this context an ‘autonomous duty of care’ for undocumented migrants (based on Article 124(1) of the Constitution together with Article 108(1) of the Municipalities Act). But there are two problems with this form of accommodation. First, municipalities will have to finance this type of shelter almost entirely on their own, without assistance from the State. In addition, rejected migrants will not be able to legally challenge the fact that the municipality does not offer sufficient shelter.
5. What’s next?
The freedom-limiting location VBL is not a realistic instrument to tackle the problems of rejected migrants. Hardly anyone manages to return within the 12-week departure period given to them. Moreover, there are always migrants who cannot enter the VBL and who end up in illegality because they do not want to or cannot cooperate with their return. This has major consequences for public order and safety issues in the municipalities. Both the municipalities and the central government want to restrict unlawful residence and want to cooperate in the search for a perspective for the migrants concerned. However, the starting point of both parties remains different. Municipalities and local NGOs, central government and organisations in the migration chain have now agreed to make an effort with setting up these pilot LVVs. In this context, the municipality of Amsterdam recently created 24-hour shelter facilities for 500 undocumented migrants. They are allowed to stay for a maximum of one and a half years and during their stay they have to pursue a legal route for a residence permit or work on their return to their home country. The big question, however, is whether we will end up in the same stalemate in a number of years’ time as the one we are in now. What if the migrants in question do not (or cannot) return and there is still no willingness to break the deadlock? Moreover, the creation of these LVVs does not alter the fact that the practical need for bed-bath-bread shelter remains in many other cities In addition, this municipal reception remains necessary in the Netherlands in order not to end up in violation of the international obligations mentioned above (whether or not directly applicable).